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Denial of Advance Parole Applications Due to International Travel Adversely Impacts U.S. Companies

September 26, 2017

U.S. Citizenship and Immigration Services
(USCIS) is denying Advance Parole (AP) applications when an applicant travels
internationally while the application is pending with USCIS. This represents a
big adjudication shift by USCIS, which has for several years allowed certain AP
applicants to travel abroad while waiting for USCIS to approve an AP
application. By making this adjudication change, USCIS is reverting back to a
literal reading of the law as outlined in the Form I-131’s instructions, rather
than allowing greater freedom of movement for individuals who are about to
become green card holders. These concerns are amplified when you consider this
new practice together with more recent adjudication restrictions posed by the Buy
American and Hire American Executive Order with USCIS and consular posts around
the globe. In a nutshell, international travel for certain foreign nationals
who are lawfully in the United States has become even more difficult.

By way of background, when filing for
adjustment of status in the United States, green card applicants generally file
concurrently an application for advance parole to permit international travel
while the green card application is pending adjudication with USCIS. Prior to
this policy change, failure to secure an advance parole prior to travel abroad
resulted in the abandonment of the underlying adjustment of status unless an
individual held an H-1B, H-4, L-1, L-2, K-3 fiancé, or V visa. These visa
categories allow individuals to have the “dual-intent” of being temporarily
present in the United States on a visa, while simultaneously pursuing a green
card. Under this new USCIS policy, holders of H-1B, H-4, L-1, L-2, K-3 fiancé,
or V visas will have to wait for their advance parole applications to be
approved before traveling abroad or their advance parole applications will be
denied by USCIS. This is significant because obtaining an advance parole during
the green card process allows green card applicants to bypass the process of
obtaining a visa stamp at a U.S. Consulate abroad, thereby avoiding the lengthy
visa appointment wait times and possible administrative processing delays that
can take months to clear while the applicant is stuck abroad. With consular
officers now taking into consideration the Buy American and Hire American
Executive Order, which increases the risk of visa denials resulting in
individuals being unable to return to the United States, the advance parole
process provides significant travel benefits.

Increasingly, however, USCIS is denying advance
parole applications for applicants who travel outside the United States while
their advance parole applications are still under review by USCIS, even if the
applicant holds a dual-intent visa. In the denial notice, USCIS is stating that
the advance parole applications are being denied due to abandonment resulting
from travel abroad. While denying the advance parole application in these
circumstances is technically proper, USCIS had a long-standing practice of
approving advance parole applications even if the applicant travels abroad, so
long as the advance parole applicant held a dual-intent visa. Specifically in
the denial notices, USCIS is referencing page 6 of its Form I-131 instructions,
which states ““[i]f you depart the United States before the Advance Parole
Document is issued, your application for an Advance Parole Document will be
considered abandoned.” Of particular concern, under this new USCIS policy,
USCIS will deny an advance parole application due to abandonment even when the
advance parole applicant travels using a currently valid advance parole.

This new development
will hamper green card applicants and those companies that employ them because
advance parole applicants must remain in the United States until the
adjudication of their advance parole application, which is consistently taking
90-120 days. For those companies who rely on L-1A multi-national managers or
executives, or L-1B specialized-knowledge workers who are also green card
applicants, this new USCIS practice may restrict the company’s ability to
manage or conduct its global business because these workers are faced with a
“soft” travel restriction. The companies and L-1 workers, along with other
workers who have non-immigrant visas, are faced with the decision of obtaining
a new visa stamp at a U.S. Consulate abroad to return to the United States,
which may be put under administrative processing or denied, or waiting the full
90-120 days before traveling abroad.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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